Ram Prasad Singh v. State Of Bihar — 1973 DIGILAW 17 (PAT)

Judgment N.L.Untwalia, J. 1. At the outset it may be mentioned that petitioner No. 2 died during the pendency of this writ application in this Court. His heirs have been substituted as petitioners 2 (a) to 2 (d). Hereinafter in this judgment, by the petitioners would be meant the original petitioners. 2. Mosammat Jagta Kuer, respondent No. 6, executed two sale deeds in favour of Ram Chhapit Yadav respondent No. 5, on 27-12-63. By one sale deed, a copy of which is Annexure 6, she transferred 0.44 acre of land comprised in plot No. 175 and 0.20 acre of land comprised in plot No. 167 for a sum of Rs. 1,000. By another sale deed, a copy of which is Annexure 7, she transferred lands measuring 1.57 acres comprised in plot No. 182 for Rs. 2,000. The petitioners claiming to be adjoining raiyats of all the three plots transferred, which seemed to be in three different blocks, filed an application on 23-3-64 under Sec.16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter to be referred to as the Act. Respondent No. 5 filed his objection and resisted the claim of pre-emption set up by the petitioners. One of the grounds on which the claim was resisted was that the purchaser himself was an adjoining raiyat of the lands transferred. Evidence was adduced before the Subdivisional Officer, Arrah, Sadar, respondent No. 2, by the parties. The learned Subdivisional Officer by his order dated 20-3-68 (Annexure 1) held that the petitioners were the adjoining raiyats of the lands transferred. At one place by a perfunctory discussion he seems to have rejected the claim of res-pondent No. 5 of his being an adjoining raiyat of the lands transferred. He went up in appeal. The appeal was allowed by the Collector by his order dated 17-11-69 (Annexure 2). A remand order was made on two grounds-- (i) that the contention of respondent No. 5 that one application could not be filed to claim preemption in respect of the lands transferred by two sale deeds had force and the Subdivisional Officer had not decided this point; and (ii) that the Subdivisional Officer also had not decided whether respondent No. 5 was an adjoining raiyat of the lands transferred. The petitioners went up in revision before the Board of Revenue. The petitioners went up in revision before the Board of Revenue. The learned Additional Member has dismissed it by his order dated 21-2- 70 (Annexure 3). Relying upon a Bench decision of this Court in Ramchabila Singh V/s. Ramsagar Singh, (1968 Pat LJR 279) the learned Additional Member, Board of Revenue, has held that one application in respect of two sale deeds executed by respondent No. 6 in favour of respondent No. 5 was not maintainable. The effect of that revision order would be that when the case goes on remand to the learned Subdivisional Officer he would be obliged to give effect to this opinion of the Board and dismiss the petitioners application filed under Sec.16 (3) of the Act. They have obtained a rule from this Court to quash the order of the Collector (Annexure 2) and that of the Additional Member, Board of Revenue (Annexure 3), against the respondents to show cause. The rule has been opposed by respondent No. 5. 3. Sec.16 (3) of the Act provides that when any transfer of land is made, then an adjoining raiyat may make an application for pre-emption. The application is to be made in accordance with Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, hereinafter called the Rules. Neither the section nor the rule aforesaid bars the filing of one application in respect of two sale deeds, Unless and until on general principles of law some difficulty is created in the filing and entertainment of one application. I see no reason to hold that one application filed in respect of two sale deeds is not maintainable. Applying the principle engrafted in the General Clauses Act that singular includes plural it is legitimate to take the view that when transfers of land are made an application, meaning thereby one application, can be made before the Collector. Similarly the requirement of the filing of a copy of the registered deed in Sub-rule (2) of Rule 19 would mean that copies of the registered deeds have got to be annexed. It is to be pointed out that there is neither any section in the Act nor any rule in the Rules attracting the application of the provision of law contained in Order II of the Code of Civil Procedure. It is to be pointed out that there is neither any section in the Act nor any rule in the Rules attracting the application of the provision of law contained in Order II of the Code of Civil Procedure. Sec.33 which provides for the authorities under the Act to have powers of the civil court does not attract the application of Order II of the Code of Civil Procedure. Rule 49 of the Rules prescribes that the procedure to be followed by the appellate authority in disposing of appeals under the Act shall, so far as may be practicable, be the same as provided for civil appeals under Order 41 of the Code of Civil Procedure. On application of the principles of law engrafted in Rule 3 of Order II, C. P, C. it would be noticed that under certain circumstances it should be permissible to have one application in respect of two or more sale deeds. If two sale deeds are executed by the same person in favour of different persons, then the pre-emptor may not, rather should not be permitted to file one application against the different sets of purchasers. There, on general principles, one purchaser should not be made a party in the case of the other purchaser and it should be insisted that two applications should be filed. It may well also be that if sale deeds are executed on different dates by same vendor in favour of the same vendee, then also filing of different applications may be advisable or necessary. But the facts of the present case are too glaring to attract the principle of law decided by the learned Additional Member. Board of Revenue, that one application was not maintainable. Two sale deeds were executed on the same day by respondent 6 in favour of respondent 5. If the pre-emptors claim to be the adjoining raiyats of all the plots transferred, they could file one application and there was no infirmity, defect or illegality in it. 4. The Bench decision of this Court in (1968 Pat LJR 279) was followed by me in several cases. If the pre-emptors claim to be the adjoining raiyats of all the plots transferred, they could file one application and there was no infirmity, defect or illegality in it. 4. The Bench decision of this Court in (1968 Pat LJR 279) was followed by me in several cases. The principle of law decided there is that if there is one sale deed transferring several plots of land in several blocks, then the pre-emptor cannot ask the Court to apportion the consideration money under Sec.37 of the Act in case he proves that he is an adjoining raiyat of a few of the blocks of land transferred and not of all. If, however, as observed in paragraph 11 of the judgment, there is only one sale deed but indicating the different blocks of land transferred for different specified prices, then such a sale is not one transaction of sale but more than one and apportionment may be possible. To apply that principle on the facts of this case I may point out that if the petitioners could establish that they are adjoining raiyats of plot 182 only and not of the other two plots covered by the other sale deed an order of pre-emption can be made in their favour in respect of plot 182 only because the consideration money of that plot is separately mentioned in the separate sale deed. But in the other sale deed a consolidated consideration money is mentioned for the two plots and therefore the claim of being an adjoining raiyat of one of the plots cannot entitle the claimant to an order of pre-emption by apportioning the consideration money. That is the ratio of the judgment of this Court in Ramch-habila Singhs case. If, however, the petitioners succeed in establishing that they are adjoining raiyats of all the plots, I see no difficulty in making an order of pre-emption in their favour and merely because one application has been filed they cannot be defeated. 5. The learned Collector seems to have committed a mistake in remanding the case to the court of the Subdivisional Officer for deciding whether respondent 5 was an adjoining raiyat of the lands transferred. Whatever materials and evidence were necessary to be considered in that regard were there on the record. No fresh evidence was necessary to be taken nor any local inspection was necessary as directed by the Collector. Whatever materials and evidence were necessary to be considered in that regard were there on the record. No fresh evidence was necessary to be taken nor any local inspection was necessary as directed by the Collector. In view of rule 49 of the Rules referred to above, the collector had the power of remand only in accordance with Rule 23 or Rule 25 of Order 41 of the Code; he had no power of remand to direct the subdivisional officer merely to re-write a judgment on fresh appraisal of the evidence and materials already on the record. The Collector himself was competent to do so. 6. For the reasons stated above, this writ application is allowed. The order dated 21-2-70 (Annexure 3) of the Additional Member, Board of Revenue, and the order dated 17-11-69 (Annexure 2) of the Collector are set aside. The case is remitted back to the Collector of Bhojpur (because the lands are situated in the new district Bhojpur) and he is directed to rehear Appeal No. 2 of 1968-69 filed be- fore the Collector of Shahabad and dispose it of in accordance with law in the light of this judgment. There will be no order for costs. Sarwar Ali, J. 7 I agree.